CH10 by shimeiyan

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									Chapter 10 Federal Criminal and Civil Remedies for Unconstitutional Conduct
42 USC 1983 18 USC 242

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Chapter Objectives
• Review the federal legal processes that can be invoked against a police officer (or other government agent) who violates the rules studied in earlier chapters.

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10.1 Introduction
• The two statutes, 42 USC 1983 and 18 USC 242 were made law during reconstruction after the Civil War to hold public officials accountable for their unconstitutional conduct. • 42 USC 1983 - is civil in nature (pay a fine). • 18 USC 242 - is criminal in nature (go to 3 prison).

10.2 Civil Liability for Unconstitutional Conduct
• 42 USC 1983 • A police officer who acts under color of state law in depriving a citizen of his constitutional rights can be sued for damages under 42 USC 1983.

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10.3 Influence of Common Law Tort Principles
• Section 1983 was drafted in a VERY abbreviated fashion, so the Supreme Court has to look outside of the statute for guidance where the text fails to cover the issue. The Court often looks to common law tort principles. • However, proving a common law tort does not establish liability under section 1983.
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10.4 Qualified Immunity
• A) Immunity is the first issue that arises in a 1983 damage suit.
• There are two forms of immunity: qualified and absolute. Qualified is “qualified” in the sense that an officer is immune from liability only if his conduct was objectively reasonable in light of the established constitutional standard.

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Immunity (Cont’d)
• Officers are only human, and mistakes and errors of judgment inevitably occur. • The doctrine of qualified immunity protects officers from personal liability for such mistakes.

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Determining whether an officer is entitled to immunity
• Two prong test.
• First prong: whether the constitutional right the officer is charged with violating was clearly established at the time of the events that gave rise to the suit. • Second prong: If the right was clearly established, would a reasonable officer, based on the information that he possessed, have believed that his conduct conformed to the standard that had been established.

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To be “clearly established” the right must be established with sufficient clarity that a reasonable officer should have known that the right existed, that it applied to this situation, and that his conduct violated it.
• This degree of clarity normally requires an authoritative precedent applying the constitutional right to a factually similar case. Authoritative precedent usually means a decision from: • (1) the U.S. Supreme Court, • (2) the federal circuit court of appeals in the officer’s state, or • (3) the highest state court, or a • (4) strong trend of judicial decisions from other jurisdictions)
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Wilson v. Layne - The “Cops” Case
• Police were immune from suit for allowing media representatives to accompany them into a private home while executing a search warrant because the only cases on point at the time the defendants acted were a state court decision from another jurisdiction, two unpublished federal district court opinions, also from other jurisdictions, and a federal court of appeals decision from another circuit that was decided only five weeks before the events that gave rise to this suit. • “This scant body of case law was not enough to provide fair notice to the police that allowing media representatives to accompany them into private homes when executing a search warrant violated the 4th Amendment.” 10

United States v. Lanier Inherent Illegality of Conduct
• Courts have not insisted on a controlling factually analogous precedent is where the nature of the conduct gives notice of its own illegality. • A state court judge sexually assaulted a number of women who came to his chamber on official business. • The Constitutional substantive due process right to bodily integrity was violated. • The Court held that this was established with sufficient clarity that the judge could be held liable for violating it, even though there was no factually analogous precedent, because no reasonable public official could have considered this conduct lawful.
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If the Constitutional Right was clearly established
• What is the second prong?

• Whether a reasonable police officer, based on the information this officer possessed, could have believed that his conduct conformed to the standard that had been established.
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Determining whether an officer is entitled to immunity:
• Whether the constitutional right the officer is charged with violating was clearly established at the time of the events that gave rise to the suit. • Whether a reasonable officer, based on the information this officer possessed, could have believed that his conduct conformed to the standard that had been established.
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10.5 Other Grounds for Pretrial Dismissal
• Collateral Estoppel Limitation:
• A criminal defendant who unsuccessfully alleges a constitutional violation in a pretrial suppression hearing is barred from bringing a 1983 action to recover damages based on the same alleged constitutional violation. Federal Habeas corpus is the exclusive post-conviction remedy designed by Congress for challenging the constitutionality of a criminal conviction. Accordingly, a 1983 suit cannot be brought where a victory would call the validity of a conviction into question, unless the conviction has previously been overturned or expunged.
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• Heck v. Humphrey Limitation
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10.6 Elements of a Sec. 1983 Claim
• To recover damages under Sec. 1983, the plaintiff must prove that the defendant • acted under the color of state law in
• depriving the plaintiff of a right secured by the Constitution or laws of the United States.
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10.7 “Under Color of State Law”
• Action “under color of state law” refers to the • misuse of power, • possessed by virtue of state law and • made possible only because the wrongdoer is clothed with the authority of state law. (Monroe v. Pape).
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This requirement is met when the wrong for which the officer is sued:
• occurred while the officer was attempting to perform his official duties, OR • was made possible through misuse of the authority that the state entrusted to the officer.
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Johnson v. Cannon - Sex for freedom from arrest.
• Officer Johnson’s traded freedom from arrest in exchange for sex. • This was a substantial departure from his duties as a police officer. • The conduct was treated as committed under color of his legal authority because he used his official position to coerce the victim into having sex with him. 18

Misconduct that has nothing to do with the officer’s official duties and is not made possible through misuse of official authority is a private wrong for which Sec. 1983 provides no remedy.

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Discussion Problem
Officer Green of the Whosville Police Department was sent to Alice Hill’s residence to investigate a burglary she reported. While he was there, Officer Green asked Ms. Hill for a date, which she refused. Two days later, Officer Green showed up at Ms. Hill’s residence and told her he needed to get more information about the burglary. After Ms. Hill Let Officer Green in, he spoke for a few moments about the progress of his investigation and then tried to kiss her. Ms. Hill demanded that Officer Green leave. Officer Green left in anger. Fifteen minutes later, Officer Green returned, forced Ms. Hill’s door open, and raped her. Ms. Hill sued Officer Green under 42 USC 1983. In order to recover, Ms. Hill will have to prove that: (1) Officer Green acted under color of state law (2) in depriving her of a right secured by the United States Constitution. Was Officer Green acting under color of state law when he raped Ms. 20 Hill?

Officer Green’s Problem
• No, he was not acting under the color of state law. • A police officer acts under color of state law only when the wrong: • (1) occurs while the officer is attempting to perform his official duties; OR • (2) is made possible through misuse of the authority that the state has entrusted to 21 the officer.

Officer Green (cont’d)
• The rape had nothing to do with Officer Green’s official duties, so the question is whether it was made possible through Officer Green’s misuse of his official authority. • Had Officer Green raped Ms. Hill the first time he entered her apartment, what would the outcome of the action have been? • Green’s action would have been treated as under color of his legal authority because he gained entrance into her residence under the pretense of needing to discuss police business with her. That would have been a misuse of the power entrusted 22 to him by the state.

Officer Green (cont’d)
• However, Ms. Hill ordered him to leave before anything happened. When Officer Green later broke-in and raped Ms. Hill, he was not acting under color of his legal authority because these acts were not made possible through misuse of his official authority. They were made possible by brute force alone. • His acts at that point were no different than the acts of any other common criminal. They were, therefore, the acts of a private citizen for which Sec. 1983 provides no remedy. The fact that Officer Green was on duty and in uniform does not change this analysis.
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10.8 Deprivation of Constitutional Rights

• Section 1983 provides a remedy ONLY for violation of rights secured by the Constitution and laws of the United States.

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10.9 Mental State (mens rea)
• The text of Sec. 1983 does not mention the mental state an officer must possess in order to incur liability. • The mental state comes in as part of the plaintiff’s proof that the officer deprived him of a constitutional right. • The language of the Constitution is the key factor in deciding the mental state needed to violate a particular provision.
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Mental State (cont’d)
• When excessive force is used during an arrest or Terry investigatory stop, the foundation for the claim is the 4th Amendment right to be free from unreasonable seizures.

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Graham v. Connor
• In addressing an excessive force claim under Sec. 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. • Claims of excessive force during arrest, investigatory stop, or other seizure are evaluated under the 4th Amendment objective reasonableness standard.
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Excessive force in prisons.
• When excessive force is used on a prison inmate, the claim derives from the 8th Amendment prohibition on cruel and unusual punishment AND • requires proof that the officer applied the force for a cruel and sadistic reason.

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10.10 Liability of Municipalities, Supervisory Personnel, and State Governments.
• Sec. 1983 imposes liability only upon persons who “subject” or “cause another to be subjected” to the deprivation of federal rights. • This language requires that liability be based on the defendant’s own personal fault in causing the deprivation of the plaintiff’s constitutional rights and • not because of the employment relationship • (ie, not based on the doctrine of respondeat superior).
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What does the phrase “respondeat superior” mean?
• Let the master respond. • How does this apply to 42 USC 1983 actions?
• It doesn’t. This theory of liability would hold the employer responsible for the employees actions. • In 1983 actions, the liability must flow from the employer’s policies and actions.
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What 3 theories of liability are there for a supervisor to be liable for an underlings’ acts? • Supervisor must: • (1) authorize or directs a subordinate to take unconstitutional action; • (2) is present and fails to intervene; OR • (3) acts with deliberate indifference to a known risk that deprivation of constitutional rights is likely to occur.
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Liability of Municipalities
• A municipality or municipal agency can be sued for a rank-and-file police officer’s deprivation of a constitutional right only if its own official policies or customs were responsible for causing the deprivation.

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Municipal Liability (cont’d)
• Liability attaches when the officer’s unconstitutional action:
• is based on a formal written policy such as an ordinance, regulation, or official policy statement. • is taken at the direction of the city’s official policymaker who has final authority over the matter, OR • results from a conscious choice of the city’s official policymaker to do nothing in the face of a known risk that deprivation of constitutional rights is almost certain to result.
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Municipal Liability (cont’d)
• Vann v. City of New York
• A policy of inadequate supervision was inferred from the city’s failure to monitor a violence-prone police officer’s conduct after repeated complaints of similar misconduct under circumstances in which the officer’s continued violation of constitutional rights was inevitable. • The city was liable under sec. 1983 because its policy of lax supervision was responsible for causing the deprivation of the plaintiff’s constitutional rights.

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Supervisor’s Liability
• A supervisor can be held liable for a rankand-file officer’s violation of constitutional rights only if the supervisor: • directs the officer to take the action; • is present and fails to intervene; OR • acts with deliberate indifference to a known risk that the deprivation of constitutional rights is almost certain to occur.
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Municipality Liability (cont’d)
• A police officer who witnesses another police officer commit unconstitutional acts is liable under sec. 1983 for failing to intervene if the officer has a realistic opportunity to prevent the unconstitutional conduct and does nothing.
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Yang v. Hardin
• Yang’s store had been burglarized. Officers Hardin and Brown went to investigate. Yang, his brother and another employee came to the store after the Officers had arrived. • Yang’s brother thought that Officer Brown was looking at the store as a shoplifter would.
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Yang v. Hardin (cont’d)
• As the officers were about to leave, Yang noticed a bulge in Brown’s jacket. • Yang confronted Brown, who initially denied taking anything. After the discussion turned into an argument, Brown reached into his jacket, pulled out “LA Raiders” shorts and threw them at Yang.
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Yang v. Hardin (cont’d)
• The officers proceeded to their car to drive away. • Yang followed. Brown shoved Yang. Hardin stood by and did nothing. Yang requested that Hardin call the police sgt. • In an attempt to prevent Brown from leaving, Yang held onto the driver’s side door. Brown drove away anyway.
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Yang v. Hardin (cont’d)
• Yang continued to hold on. Brown drove fast and recklessly, braking and accelerating in an attempt to throw Yang. Brown elbowed Yang in the ribs during this time. • Yang asserts that he could not let go without being run over. • Hardin sat in the passenger seat and did nothing.
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Yang v. Hardin (cont’d)
• The car traveled more than 2 blocks w/ Yang hanging on. Two men on the sidewalk saw what was happening and ran into the street to stop the squad car. • Brown stopped, got out of the car, and punched Yang in the face, knocking him to the ground. • Brown got back into the car and drove away.
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Yang v. Hardin (cont’d)
• Yang pressed criminal charges against both Brown and Hardin. Both were convicted of felonies. • Yang then sued them under 42 USC 1983. • Judgment against Brown for $229,658. • Judge found Hardin not liable for violating sec. 1983.
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Yang v. Hardin (cont’d)
• Should Hardin have been found liable? • Two prong test: Conduct complained of: • was committed by a person acting under color of state law; and • deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
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Yang v. Hardin (cont’d)
• Prong 1: • No dispute that both officers acted under color of state law. • They were on duty, in uniform, driving a marked squad car, and were investigating a crime when the incident occurred.

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Yang v. Hardin (cont’d)
• Issue: Whether Hardin’s failure to intervene deprived Yang of his liberty rights under the Due Process Clause of the 14th A and his rights under the 4th A to be free from unreasonable seizure. • Held: It did.

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Yang v. Hardin (cont’d)
• Rule: An officer who is present and fails to intervene to prevent other officers from infringing the constitutional rights of citizens is liable under sec. 1983 if that officer had reason to know:
• (1) that excessive force was being used; • (2) that a citizen has been unjustifiably arrested; or • (3) that any constitutional violation has been committed by an officer; and the officer had a realistic opportunity to intervene to prevent the harm from occurring.
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Yang v. Hardin (cont’d)
• Application: The facts show that Hardin had several opportunities to intervene. At a minimum he could have called for backup, for help, or cautioned Brown to stop. • In fact, Hardin should have arrested Brown.

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State Government Liability
• State governments and state government agencies are NOT subject to suit under sec. 1983 because the 11th Amendment grants state governments immunity from being sued in a federal court for damages.

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10.11 Liability of Federal Law Enforcement Personnel
• Federal law enforcement personnel cannot be sued under sec. 1983 because they act under color of federal law. • However, the Supreme Court has crafted an identical remedy for holding federal officials liable that arises directly under the Constitution. • Actions against federal officers are called Bivens actions.

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10.12 Liability of Private Individuals
• Private parties can be sued under sec. 1983 when they act under color of state law.

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Liability of Private Individuals (cont’d)
• Action under color of state law is present when private parties:
•

• •

act in concert with state officials; act under compulsion OR with significant state encouragement; or perform a public function (ie, one that is traditionally performed exclusively by the government).
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10.13 Criminal Responsibility for Unconstitutional Conduct (18 USC 242)
• The 4 elements of proof necessary to obtain a conviction under sec. 242 are: • The defendant acted under color of law; • The defendant’s conduct violated a right protected by the Constitution or laws of the United States; • The defendant acted with a willful intent to deprive the victim of this right. (Screws v. US). • The right violated was previously made specific through judicial decisions. (US v. Lanier - the same test for when a constitutional right has been “made specific” so as to allow criminal prosecution under sec. 242 is the same as the test for when a constitutional right has been “clearly established” under 52 sec. 1983.)

How Sec. 242 differs from Sec. 1983:
• 242 is a criminal statute. • 242 reaches conduct committed under color of federal law, as well as under state law. • The Justice Department must prove that the defendant acted with a willful intent to deprive the victim of a constitutional right.
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18 USC sec. 242 (cont’d)
• Because of the difficulty of establishing a specific intent to deprive a person of a constitutional right, prosecutions are generally brought only for conduct that is so obviously unlawful that the defendant could not have failed to appreciate its unconstitutionality.
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10.14 Rights Protected by the 14th Amendment
• Constitutional accountability under sections 1983 and 242 is not limited to the rights discussed in earlier chapters. • A significant number of section 1983 and 242 cases involve rights protected by the 14th Amendment due process and equal protection clauses. • We will cover those areas next . . .
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10.15 Substantive Due Process
• Substantive due process is violated when an officer engages in: • active conduct • that is so egregious that it shocks the contemporary conscience.
• This theory is used to obtain a remedy for serious misconduct that does not violate any textually explicit provision of the Bill of Rights.
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Substantive Due Process (cont’d)
• 14th A imposes no affirmative duty on government actors to protect the lives, liberty, and property of citizens from dangers that they had no hand in creating.
• This interpretation comes from the case DeShaney v. Winnebago Cty Dept. of Social Services.

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Substantive Due Process (cont’d)

• A substantive due process violation must be based on something an officer did that caused the plaintiff’s injury, as opposed to something the officer did not do.

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Substantive Due Process (cont’d)
• Police have a duty to protect when their prior actions increase a person’s vulnerability to danger. A duty arises on this basis when: • Officer constrains a person’s liberty and render
• the person unable to care for himself. Officer’s prior action places a person in a dangerous position that would not have existed had the officer not intervened.

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Substantive Due Process (cont’d)
• Not only must there be active conduct, the conduct must “shock the contemporary conscience.”
• Since police are frequently forced to make split-second decisions under pressure without the luxury of a second chance, even reckless behavior does not reach the conscienceshocking level when an officer is attempting to perform his duty.
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Substantive Due Process (cont’d)
• On Oct. 18, 1998, Carol Ford separated from her husband, George, who had developed a drinking problem and was physically abusive. • Terrified, Carol went to the Police Dept. and spoke to Sgt. Gilespie, informing him that her husband had threatened to kill her. • Sgt. Gilespie told her that there was nothing the police could do until her husband caused her physical harm. • He also told her that the police were not babysitters and that her domestic situation was her concern, not the department’s.
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Substantive Due Process (cont’d)
• Two days later, George broke into the house by kicking in the door, and shot Carol 3 times in the face and neck, causing quadriplegia. • Carol Ford sued Sgt. Gilespie under 42 USC 1983, claiming that he violated her right to substantive due process by not protecting her against her husband’s violence. • Is Sgt. Gilespie liable? • No. Why?
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Substantive Due Process (cont’d)
• Carol Ford’s situation is identical to Joshua DeShaney’s. • The authorities “knew” that Joshua was being abused, but failed to protect him. • S.Ct. ruled that the failure of a state government official to protect citizens known to be at risk against violent acts of third parties does not constitute a violation of substantive due process because the purpose of the due process clause is to protect people from the state, not to ensure that the state protects them from each other. 63

Substantive Due Process (cont’d)
• DeShaney teaches that liability for violating substantive due process must be predicated on the affirmative actions of the police, not on their failures to act. • Carol Ford’s situation does not fall w/i either of the 2 exceptions noted in the text because police did not take Carol Ford into custody nor do anything to create or enhance her danger.
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Substantive Due Process (cont’d)
• Female domestic violence victims have had slightly greater success in trying to assert their claims under the equal protection clause. • Although there is no general constitutional right to police protection, police may not discriminatorily deny protective services to women because of their gender.
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Substantive Due Process (cont’d)
• To prove that denying protective services to women because of their gender is extremely difficult. • Courts require proof that: • the police had a policy of providing less protection to victims of domestic violence than to victims of other violence, • that this was the product of gender discrimination, and • that the policy caused the plaintiff’s injuries.
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10.16 Fourteenth Amendment Right to Equal Protection
• Police violate equal protection when they deliberately treat one person differently than they would treat another person in the same situation if the reason is:

• •

•

the person’s race, religion, national origin, or sex; a desire to punish the person for exercising a constitutional right; or a malicious intent to injure the person out of spite.
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